Feeds

Juries: The only reason ANYONE understands patent law AT ALL

Give us honest men, not a parcel o' wiggy land-sharks

  • alert
  • submit to reddit

The Power of One Brief: Top reasons to choose HP BladeSystem

Andrew's Mailbag Apple's recent mobile patent trial victory over Samsung has raised the spectre of justice being done behind closed doors by self-appointed elites.

Today, it's the norm for juries to decide patent disputes. Jury trials oblige the parties to speak in plain language. And there's plenty of wiggle room for cantankerous citizens to disobey "expert" advice. For example, the Californian jury that awarded Apple billion-dollar damages in the Samsung dispute nevertheless threw out several of Apple's allegations - eviscerating its claims over the iPad.

Yet after the verdict, intellectual property experts saw the opportunity to exclude the public. In the aftermath, we noted that IPKat, a UK-based blog written by lawyers and academics, pondered: "Does this jury verdict strongly argue against the case for jury trials?"

And it was joined by The Economist magazine, which proclaimed:

Specialised courts for patent disputes should be established, with technically minded judges in charge: the inflated patent-damage awards of recent years are largely the result of jury trials.

What's wrong with this picture? We're grateful to Professor Robin Feldman at Hastings College of Law at the University of California, in San Francisco, for providing us this extract from her 2009 book The Role of Science in Law. It includes a paper entitled Plain Language Patents, which you can read via the SSRN network here. Professor Feldman highlighted these passages:

If legal actors cannot understand the full implications of the terms being used, they cannot do an adequate job of considering the legal questions surrounding the precedents. They are, in essence, flying blind. . . .it is important to note that most legal actors have no scientific expertise. District court judges charged with patent interpretation are unlikely to have any scientific expertise  The same is true for the jurors, who must decide other elements of patent cases. Even the specialized judges of the Federal  Circuit may have little knowledge or experience relevant to a particular case. Most Federal Circuit judges have neither a technical background nor patent experience when they are appointed to the bench.

Parroting technical language can obscure an inability to grasp the full meaning and implications of an issue. It creates the temptation to engage in a form of sophistry, to speak in . . . a seductive, jargon-filled way that leads us to believe we have mastered something deep for having learned to use the jargon. We cannot effectively engage in the process of interpretation and adaptation unless we are speaking a common language. Jargon is also the perfect vehicle for strategic behavior. It allows legal actors to use broad open-ended language and then argue later that whatever position they wish surely falls within the language chosen.

Most importantly, plain language allows judges to more easily understand the implications of their decisions and puts pressure on judges to take responsibility for those decisions. In particular, for judges who do have technical expertise, a plain language system avoids the temptation to suggest “we in the club know it when we see it, and that is good enough.” The requirement for clear and plain communication keeps legal actors faithful to supportable logic rather than subject to the whims of prejudice masked in obscurity.

The goal should be to encourage translation of scientific terms into understandable concepts, rather than to indulge jargon by creating its own forum.

"Prejudice masked in obscurity" - what a great phrase.

When they receive exclusive economic rights, inventors and creators get a quite unique privilege, and they get powerful protection in return. It doesn't seem unreasonable that disputes over these privileges are heard by their peers - by us. And it's telling who seeks to turn a drama into a crisis - and for what undemocratic ends. ®

Designing a Defense for Mobile Applications

More from The Register

next story
Adam Afriyie MP: Smart meters are NOT so smart
Mega-costly gas 'n' 'leccy totting-up tech not worth it - Tory MP
Just TWO climate committee MPs contradict IPCC: The two with SCIENCE degrees
'Greenhouse effect is real, but as for the rest of it ...'
'Blow it up': Plods pop round for chat with Commonwealth Games tweeter
You'd better not be talking about the council's housing plans
Arrr: Freetard-bothering Digital Economy Act tied up, thrown in the hold
Ministry of Fun confirms: Yes, we're busy doing nothing
ONE EMAIL costs mining company $300 MEEELION
Environmental activist walks free after hoax sent share price over a cliff
Help yourself to anyone's photos FOR FREE, suggests UK.gov
Copyright law reforms will keep m'learned friends busy
Apple smacked with privacy sueball over Location Services
Class action launched on behalf of 100 million iPhone owners
UK government officially adopts Open Document Format
Microsoft insurgency fails, earns snarky remark from UK digital services head
prev story

Whitepapers

Implementing global e-invoicing with guaranteed legal certainty
Explaining the role local tax compliance plays in successful supply chain management and e-business and how leading global brands are addressing this.
Consolidation: The Foundation for IT Business Transformation
In this whitepaper learn how effective consolidation of IT and business resources can enable multiple, meaningful business benefits.
Application security programs and practises
Follow a few strategies and your organization can gain the full benefits of open source and the cloud without compromising the security of your applications.
How modern custom applications can spur business growth
Learn how to create, deploy and manage custom applications without consuming or expanding the need for scarce, expensive IT resources.
Securing Web Applications Made Simple and Scalable
Learn how automated security testing can provide a simple and scalable way to protect your web applications.